1. The respondent's application for the proceeding to be summarily dismissed or struck out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is dismissed.

1. The further hearing of the application shall proceed before me as scheduled commencing on 25 November 2014.

1. In September 2011, Mr Obudho, the first applicant, operated a business called IDJS Entertainment (IDJS).[1] One of his employees contacted the respondent, the owner of Inflation Nightclub (Inflation), to enquire about booking a room for an event.
2. An agreement was made for IDJS to hire the basement at Inflation for the night of Saturday, 1 October 2011. It is said that each of the second to fifth applicants intended to attend the event that night.
3. On around 26 September 2011, five days before the booked event, there was a conversation between Mr Obudho's employee and staff from Inflation. The practical result of that conversation was that the booking was cancelled.
4. The applicants say that the booking was cancelled by Inflation because it became aware that the majority of patrons who would attend were African. They say that Inflation engaged in discrimination on the basis of race contrary to the Equal Opportunity Act 2010 (Vic) (EO Act).
5. Inflation says that the booking was not cancelled because of the race of the patrons. Rather it says that, when it became aware of security concerns about the planned event, it asked IDJS to contribute to the cost of having additional security guards working on the night. It was also concerned that the agreement it had made with IDJS was for a function event rather than a promoter event. The latter requires a different form of agreement which, amongst other things, makes provision for the additional security mentioned.
6. Further, where a booking is made by a promoter, Inflation sends a form to Victoria Police to notify it about the event, consistent with the content of a publication called Venue Compliance Essentials (VCE).
7. Inflation says that it takes these steps to arrange additional security and liaise with Victoria Police to ensure that it complies with its legal obligations arising from the liquor licence is has been granted under the Liquor Control Reform Act 1998 (Vic) (LCR Act). Inflation says that, even if it were found to have engaged in prohibited discrimination on the basis of race, contrary to the EO Act, the decision to cancel the booking was authorised by the LCR Act and so the conduct was not unlawful. Inflation relies on the exception contained in section 75 of the EO Act for this position.

1. It was agreed that there would be a preliminary hearing on the question of whether section 75 of the EO Act applies such that, even if adverse findings of discrimination were made against the respondent, it would be protected by the exception. If Inflation was able to establish that the EO Act section 75 exception applies, then it would be appropriate for the application to be struck out or dismissed under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
2. It was further agreed that the preliminary hearing would proceed on the basis that Inflation was entitled to call evidence as to the section 75 defence from police officers and from the owner of Inflation. The hearing was to proceed on the basis that the applicants' case would be taken at its highest. The applicants were entitled to apply to call evidence as to the preliminary issue.
3. Inflation called evidence from the sole director of the respondent, Ms Martha Tsamis, and from two police officers. No evidence was called for the applicants. Oral and later written submissions were made by the parties.
4. For the reasons set out below, I have concluded that section 75 of the EO Act does not provide a defence to the application.

1. The EO Act is protective legislation that seeks to ensure that persons with named attributes are not discriminated against because of those attributes in relation to specified activities or classes of activities. One of those protected attributes is race.[2] The class of activity relied on here, is the provision of services.
2. Section 75 of the EO Act says:

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of:

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

1. While in its amended defence, Inflation referred to the decision to cancel the booking as being made necessary by the LCR Act,[3] at the preliminary hearing, reliance was placed on the authorisation referred to in section 75. Inflation's subsequent written submissions included an application to amend the defence to include reference to authorisation under section 75.
2. Section 13(1) of the EO Act provides that, discrimination is not prohibited if a general exception (such as section 75) applies. Section 13(2) says that such an exception is a defence to discrimination, and the person seeking to rely on the exception has the burden of proving that it applies.
3. Inflation says that section 75 applies here such that it is a complete defence. On that basis I have approached this preliminary question taking into account the following:
   • Despite not having heard all of the evidence about the dealings between the parties, and particularly from the applicants, I will assume that Inflation cancelled the IDJS booking and that in doing so it engaged in discrimination on the basis of race; and
   • I have disregarded the material contained in Inflation's witness statements as to the nature of its security concerns and how they came to its attention, however, I have assumed that in the conversation between IDJS and Inflation staff there was reference to security related concerns. Taking the applicants' case at its highest, I have proceeded on the basis that Inflation did not ask IDJS to contribute to the cost of additional security.[4]
4. I emphasise that I have not made any finding adverse to Inflation on the question of prohibited discrimination. That matter will remain open to be determined at the further hearing of this matter.
5. I have proceeded on the basis that the conduct which Inflation says was authorised by the LCR Act was twofold.
6. First, the application of a policy arising from the content of the publication called Venue Compliance Essentials (VCE) which requires that, where a promoter event is being held, notice in a particular form must be given to Victoria Police sufficiently in advance of the event so that discussions about the event may be held between Inflation, Victoria Police and/or the promoter (the notice policy).
7. Secondly, the application of a policy that, where the event in issue is a promoter event, Inflation's standard form promoter agreement must be entered into which includes an obligation to contribute to the cost of Inflation engaging additional security guards for the night (the security policy).

1. Inflation referred me to the purpose of the LCR Act and to sections 17, 91 and 93A.
2. The purpose of the LCR Act is to reform the law relating to the supply and consumption of liquor.[5]
3. Section 17 says that 'it is a condition of every licence that authorises the supply of liquor outside ordinary trading hours that the licensee does not cause or permit undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to which the licence relates during or immediately after the hours outside ordinary trading hours to which it relates.' Inflation has been granted a late night (on premises) licence to supply liquor on its premises for consumption on the premises for hours which extend beyond ordinary trading hours as defined.
4. Section 91 of the LCR Act permits the Victorian Commission for Gambling and Liquor Regulation (Commission) to conduct an inquiry into whether there are grounds to take disciplinary action against a licensee. Such an inquiry may be undertaken on the Commission's own initiative or on the request of persons including the Chief Commissioner of Police. An inquiry may be undertaken into whether a licensee has breached the condition that it not cause or permit undue detriment to the amenity of the area arising out of the use of the licensed premises. Under section 93A, after conducting an inquiry, the Commission may suspend, cancel or impose conditions or fines in relation to the licence in issue.
5. The concept of 'amenity' is at the centre of Inflation's position. It is defined in section 3A as follows:

(1) For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.

(2) Factors that may be taken into account in determining whether the grant, variation or relocation of a licence would detract from or be detrimental to the amenity of an area include -

(3) Nothing in subsection (2) is intended to limit the definition of amenity.

1. Inflation referred me to Planet Platinum Ltd v Hodgkin where Kyrou J made the following comment regarding a licensee's responsibility for supervision of crowd controllers engaged through a company separate from the licensee:

A licensee under the Act is responsible for ensuring that the licensed premises have adequate resources to ensure compliance with the Act and the relevant licence. Those resources include crowd controllers. The provisions in a licence about the number of crowd controllers who must be present at particular times and in particular parts of the premises are minimum requirements. If the orderly functioning of the premises requires additional crowd controllers, the licensee is responsible for procuring them and directing them to perform duties in particular parts of the premises. The licensee may direct a crowd controller to refuse entry to an intoxicated person or to eject an intoxicated patron, even though the licensee cannot direct the crowd controller on how he or she physically performs the task. [6]

1. Inflation says that, it would be impossible for the legislature to codify the requirements for each licensee to meet the requirements of its licence. It says that, by necessary implication, the LCR Act authorises a licensee to impose conditions on those with whom it deals to preserve the amenity of the area in which the licence operates.

1. The notice policy arises from the May 2011VCE publication. That publication was produced as an initiative of the Melbourne Licensees' Forum, a voluntary group made up of licensees of venues located within the City of Melbourne. It provides an opportunity for licensees to meet, discuss and respond to liquor licensing, safety and amenity issues relevant to them and the broader community. Meetings of forum members are attended by representatives of the City of Melbourne, Victoria Police, Responsible Alcohol Victoria, the Metropolitan Fire Brigade, the Australian Hotels Association and the Association of Liquor Licensees Melbourne. There is a forum steering committee which is chaired by the Superintendent of North West Metro Region, Division 1 and includes representatives of the abovementioned entities and the Victoria Police Divisional Licensing Unit (DLU).[7] Inflation is a member of the forum and Ms Tsamis was at all relevant times and remains a member of the forum steering committee.
2. The VCE was described by Ms Tsamis and Inspector Andrew Falconer (at the relevant time officer in charge of the Melbourne DLU), as setting out best practice for licensed venues in the City of Melbourne.

1. Section 18 of the VCE deals with promotions at venues. Promotional events at venues may include music festivals, sporting carnivals, culturally specific events, fashion events and the Melbourne Comedy Festival. The relevant part of the VCE says:

Licensees may from time to time work with external promoters to run special events within their licensed premises. It is vital that you, as the licensee, and the external promoters communicate expectations of how the event should be promoted and managed.

Also, your liquor licence can be at risk if the external promoters are not fully informed of your expectations regarding:

• responsible service and consumption of alcohol
• safety and security requirements
• their advertising campaign including content and core messages.

Once you have confirmed your event please complete the external promoters form (included in this section) and submit to VicPol - Divisional Licensing Unit, (either via fax or email as noted on the form), prior to the event.

1. Ms Tsamis gave evidence that promoters hired space within Inflation for an agreed price. They also agreed to a minimum spend on the bar and they received a share of the door takings. Attendees comprise people who have pre-purchased tickets, people who are named on a guest list and members of the public who attend on the night.
2. By contrast, Inflation from time to time hires rooms out for private events such as 21st birthday parties, hen's nights and corporate events. There is a guest list for these private events, an agreed minimum spend on the bar but, as I understand it, there is no entry fee.
3. There was no dispute that the event planned by IDJS was best characterised as a promoter event.
4. The external promoters form (promoter form) referred to above required completion of a range of details including the name and contact details of the venue, the name and contact details of the promoter, the event name and details such as estimated attendees, number of pre sold tickets and a copy of advertising material. The form carries the Victoria Police logo and has the DLU's fax and email addresses pre-printed at the top.
5. Inflation's position was that it had adopted the policy of completing and submitting the promoter form for every such event.

1. Culturally specific events are mentioned in section 18 of the VCE as an example of a promoter event. The VCE has a practice guide on such nights which was relevant to this matter. The practice guide explains that the majority of young adults who attend culturally specific events behave well and enjoy themselves without incident, however, there may be scope to improve management of these events. The guide sets out a checklist of steps promoters and venues may take to 'enhance safety and improve venue practice'. The checklist says that licensees should complete the promoter form and submit it to the DLU.
2. At the end of the practice guide, a definition of 'culturally specific event' is set out. The term is defined to mean any event which is promoted as such but does not exclude other nationalities or at which a large proportion of individuals attending identify with a specific cultural group or at which a large proportion of individuals at the event are from a specific cultural group. A disclaimer at the end of the practice guide says that it is a guide only and does not serve as legal advice. Reference is made to all licensees being required to comply with the law in operating their venues.

1. As mentioned earlier, Inflation says that it has a different agreement where the event for which a room is being hired is a promoter event rather than a private function. While a copy of the standard form promoter agreement was not before the Tribunal, it was not disputed that it requires that additional security be arranged by the respondent for a promoter event and that the promoter contribute to the cost of that additional security. Inflation relies on the VCE for applying this policy.

1. Ms Tsamis gave evidence about her knowledge of the circumstances which led to this application and about the application of the above policies to events at Inflation.
2. Ms Tsamis explained that, where a promoter event is proposed, her staff ask questions about a range of matters including where the promoter has held functions before and what clientele they expect to attend. The staff arrange for the promoter agreement to be entered into. In this case, a private event or function agreement had been entered into instead. It referred to a music industry night and she understood that meant an event for IDJS music people only. This also meant that the promoter form was not sent to IDJS for completion and then on to the DLU.
3. Ms Tsamis' evidence was that she only became aware IDJS function was a culturally specific event when she came into the Inflation office during a call between her staff and an IDJS staff member on 26 September 2011, a week before the planned event. Her evidence was that she would not have agreed to hold an African dance night on a Saturday night as Inflation already had such an event each Saturday night. She said that event had then been running for two years. There was a promoter agreement in place and extra security was present with the cost being shared by the promoter.
4. She explained that it would have been unfair on that promoter to have another similar themed event on the same night as patrons might pay to enter the IDJS event when they intended to go to the existing event. Also, patrons might be confused about which event they wanted to attend and this would lead to difficulties in managing people entering the venue and ensuring that they attended the correct event so as to ensure the promoters each received the appropriate share of the entry fees. Having seemed to suggest that it would be difficult for staff to ask people entering the venue which African event they wanted to attend, Ms Tsamis agreed that a mix of races could attend both the existing African night and the proposed IDJS event.
5. Ms Tsamis' evidence was that her staff suggested that they and IDJS sit down with police and discuss the event and that the night be re-scheduled for another time.
6. As to the usual use of the notice policy, Ms Tsamis' evidence was that her staff arrange for the promoter form to be completed. Her staff completes the top section and the promoter is asked to complete the bottom section which deals with details such as estimated attendees, number of pre sold tickets and a copy of advertising material. She said that it is common for a Facebook page to be set up and they expect the promoter to provide those details. Her evidence was that once the form had been returned to Inflation, it was sent to the DLU to be 'approved'. She said that sometimes a promoter might send the form direct to the DLU as its fax number is on the form.
7. Ms Tsamis' evidence was that, on receipt of the promoter form, Inflation would call the DLU. They would then discuss any concerns or issues about conflicting events in the area, numbers, security or other matters. She said that sometimes the DLU suggests cancelling events. She said that there had been a few cancelled over the years in Melbourne because the promoter had been 'economical' with the truth about their experience, previous events and the like. As an example, she said that some years ago the other nightclub her company owns, Chasers in South Yarra, was running a Croatian night. Another nightclub around the corner had plans for a Bosnian night. Police made enquiries about whether they were each aware of the other. It was decided to cancel one of the events.
8. Discussions with the DLU could take some weeks or a month and so Inflation expected to receive the promoter form more than a week before the event to allow sufficient time for these discussions to be held. In re-examination, Ms Tsamis indicated that promoter events are usually arranged months in advance to allow for meetings with the DLU, check files and speak with others. That time also seemed to be required to ensure that police approval had been obtained before Inflation would allow the promoter to start advertising.
9. Ms Tsamis told the Tribunal that, where a promoter night is to be held, additional security is arranged and that is part of the terms of the promoter agreement. For a culturally specific event, Inflation would usually arrange for two and a half or three times the usual level of security. She said this was in order to manage amenity. She explained that, if there are issues or there are fights start on the street or Inflation is not managing the clientele, this could affect the licence and also affect public and clientele safety.
10. I understood from Ms Tsamis' evidence that the additional security is required in part to direct traffic once patrons enter the venue - that is they assist to ensure that patrons find the correct location within Inflation for their event and also that they do not move between promoter events. This latter possibility is important. Where patrons pay to attend one event and part of that payment goes to the promoter, it would not be fair if the patron then entered another promoter event without paying for the latter event. The second promoter would not receive income despite providing a service to that patron and, presumably, the first promoter may miss out on the benefit of any bar expenditure the patron might make in the second event area. Ms Tsamis explained that, if a patron wanted to move between events, they should leave the venue and re-enter having paid an additional entry fee. Ms Tsamis explained further about the confusion which can arise. She referred to two different AFL clubs having events in different parts of the venue on the same night and people moving between the two.
11. In cross-examination, Ms Tsamis was asked about incidents of violence associated with Inflation. Her evidence was that in the previous year Inflation had seen 141,000 patrons and there had only been two assaults. She said the assaults had been one on one violence of a minor nature. She said that there had been 337 police visits to the venue and none had revealed any breaches of Inflation's licence. Her evidence was that, it can be hard to predict when a fight might occur, through having enough staff, undertaking identity scans, bag searches, security scans and by working with promoters Inflation tends not to have problems.[8]
12. In summary, Ms Tsamis' evidence was that the promoter form was an important part of Inflation assessing the risk of a promoter event being held and how to manage such an event. That, together with ensuring that additional security is available through the promoter agreement, are considerations which assist Inflation in complying with its licence conditions.
13. Ms Tsamis told the Tribunal that Inflation regularly hosts culturally specific events - she referred to Greek, Indian, Asian nights and African nights - she said Inflation was not racist.
14. As to the VCE, Ms Tsamis reiterated that its guidelines represented best practice and gave evidence that a failure to follow the guidelines and advice of police could lead to notices regarding compliance with her licence to be issued.

1. At the relevant time, Inspector Falconer was the officer in change of the Melbourne DLU.
2. While he had no role in the production of the VCE, he was involved in its launch. He confirmed that it had arisen out of a partnership between the Forum, Victoria Police, the City of Melbourne and other stakeholders. He confirmed its purpose was to set out best practice for licensees and for those who are regarded as better practitioners to give advice to others. For Inspector Falconer, best practice means complying with the LCR Act and the management of venues generally. He confirmed it was a voluntary guide.
3. Inspector Falconer characterised Victoria Police's role is to uphold the law, reduce risk to the community and minimise harm.
4. Inspector Falconer took a broader view of what constituted a culturally specific event. He referred to all sorts of themed nights as presenting risks. He said that any theme night could raise problems. He referred to there being problems between people and old tensions coming out, particularly in the context of alcohol consumption. His position was that at any theme night and whatever the background of the patrons, where there was a large group, existing tensions could come up. He agreed that could occur regardless of race and referred to past histories of conflict, religious issues and protests and counter protests.
5. He said the purpose of the promoter form was to inform DLU about planned events so that it could plan foot patrol units, make a risk assessment and perhaps oppose events being held. He said he did not recall ever advising against a particular event being held but said that he might have raised concerns about a venue holding an event it does not usually hold or operating for later than usual hours. In the mix of matters considered by the DLU he mentioned numbers of people attending the King St and CBD area, clashing events (such as between rival sporting or other organisations) and possible conflict between underage events and sexually explicit venues. He agreed that the promoter form is directed at harm minimisation.
6. Inspector Falconer was asked in cross-examination whether it was hit and miss with venue sending the DLU promoter forms. He said that was difficult to gauge. He said that sometime they only realised there was a cultural or theme night at a venue when they attended on the night. He also said there was no time limit on receipt of the promoter form. He said that the form could be accepted at any time but preferably as soon as the licensee knew about the event. The timing could affect how well the police could respond or talk to and negotiate with the venues if it appeared that there were events which could clash. He gave evidence that he hoped that a week would be enough time to speak to a venue about an event of concern and thought that ought to be enough time for the venue to arrange extra staff and for him to arrange any extra patrols. Notice of events in the area allowed for Victoria Police to consider how they might impact on its resources on a particular night. He suggested that at times the DLU would refer a licensee to another for advice or suggestions. Inspector Falconer agreed that the promoter form was one way for licensees to improve safety and minimise the risk of harm and violence but, as I understood his evidence, denied that Victoria Police was responsible for the approval of a specific event.
7. While Inspector Falconer indicated that a concern may arise where a venue has the VCE but appears not to be using it, he did not agree that a failure to adhere to the guidelines in the VCE might be an aggravating factor when it came to possible licence breaches.
8. In response to a question from me, Inspector Falconer said that, if there had been no charges laid arising from a violent incident involving a venue, he had a limited capacity to speak to another venue about those matters. I understood that he would suggest that one venue operator talk to the other about risk and other factors in those circumstances.

1. Sergeant Ormiston attended to give evidence regarding practices in the City of Stonington. In his brief evidence, Sergeant Ormiston said that neither the VCE nor the promoter form is used in the City of Stonington.

1. Having regard to the evidence of Inspector Falconer, I am not satisfied that, as at Monday 26 September 2011, it was too late for the promoter form to be sent to Victoria Police's DLU to notify it about the event and seek its comment on any concerns.
2. Further, given Inspector Falconer's evidence about the usual steps taken by the DLU on receipt of such a form, I am not satisfied that a sufficient connection between the giving of the notice and Inflation's obligations as to amenity has been shown. Inspector Falconer's evidence was that, while sometimes there might be a discussion about risk related concerns, at other times on receipt of such a form, there would only be a check on the foot patrols scheduled for the evening. Unless there had been charges laid in respect of events which could be relevant to a proposed event, he would not have discussions about a particular group of people or earlier incidents. He would rather encourage a licensee to talk to other licensees to discuss what steps to take. His evidence did not confirm that it was routine for there to be detailed levels of consultation between the DLU and licensees, particularly about whether a particular event should go ahead. In fact, it appeared not to be uncommon for the DLU to find out about promoter events late in the piece and sometimes not until the night.
3. I find that, while in appropriate circumstances Victoria Police will consult with licensees about particular events and public safety risks which may arise, that is not a standard or automatic process and ultimately decisions about whether to proceed with an event is a matter for the licensee.
4. Importantly, for Inspector Falconer, the risk associated with an event did not necessarily arise from it being a culturally specific event but rather from having a large number of people in one place where old tensions might arise, particularly in the context of the consumption of alcohol. On his evidence those tensions are not always race or nationality related and may arise in a range of events including sporting clubs.
5. I accept that, as discussed in Planet Platinum, a licensee needs to make its own assessment as to what security and other measures are appropriate and how they should be managed. I accept the proposition that adherence to the guidelines in the VCE would likely assist a licensee to meet its licence obligations. I accept the evidence that the steps outlined are regarded as best practice.
6. However, the VCE is not a guide to compliance with legal obligations arising under the LCR Act. As explained in the introduction, it is a booklet which is designed to:
   • assist licensees to understand the elements required to enhance their responsibilities in managing the impacts of alcohol use and misuse in and around licensed premises
   • encourage the development of policies and protocols to improve management of the these (sic) demands
   • contain required venue documentation to meet conditions on a liquor licence and is designed to be the first point of reference for regulating authorities to check that the venue is meeting compliance standards.[9]
7. The compliance matters referred to in the third dot point are covered in Section A of the VCE. Section B, which contains the material regarding promoter and culturally specific events, addresses people safety. The publication carries a warning that it should not be relied upon as a substitute for legal advice or reference to the actual legislation, presumably the LCR Act.
8. I consider Sergeant Ormiston's evidence to be very relevant on this matter. The booklet and form are not used in the City of Stonington. While that is likely to be in part because the particular mix of venues and numbers is different in the South Yarra area, it is notable that apparently there is no equivalent notification process applied for the nightclubs in that area. There was no suggestion from Inspector Falconer that sending a promoter form (or something similar) was regarded as mandatory.
9. Accordingly, I am not satisfied that compliance with the VCE in respect of promoter or culturally specific events is necessary to comply with the amenity related requirements arising under the LCR Act.

Law relating to section 75 of the EO Act - necessity

1. Inflation referred me to no authority on the meaning of necessary in section 75 of the EO Act and made no submissions as to how that part of the exception may arise here.
2. The applicants' referred me to the High Court of Australia's decision in Waters v Public Transport Corporation.[10] The case concerned the Victorian Minister for Transport issuing a direction under the Transport Act1983 (Vic) to remove conductors and change the ticketing system used on Victorian public transport. The new system was impossible or extremely difficult for the applicants to use due to their various disabilities and so they made a complaint of discrimination. The High Court adopted a narrow construction of the equivalent exception, finding that it referred to something which was done in order to comply with a specific obligation, directly imposed by an actual provision of another Act, as distinct from a requirement imposed by some person in the exercise of a power conferred by a provision.
3. There is nothing in the LCR Act provisions set out above or in the VCE, which indicates that the two policies were necessary in order to comply with the LCR Act obligations on Inflation. Accordingly, Inflation cannot rely on the necessity aspect of section 75 of the EO Act.

Law relating to section 75 of the EO Act - authorisation

1. Inflation referred me to the Supreme Court of Victoria Court of Appeal decision in HJ Heinz Company Australia Ltd v Turner[11] which considered the then applicable equivalent of section 75 of the EO Act.[12] Inflation relies on that case for the proposition that section 75 is enlivened when a company adopts a policy in order to comply with a provision of an act that requires it to provide a safe work environment. In HJ Heinz, the company relied on a policy which disqualified employees from undertaking overtime when they on restricted duties due to a work place injury. That policy was said to be authorised by the Occupational Health and Safety Act 1985 (Vic) (OHS Act). That was because the company was found to have introduced, pursuant to obligations imposed by law, a regime of work practices, appropriately designed to secure the health and safety of a category of employees. The category of employees were those on restricted duties due to a workplace injury. The Court of Appeal decided that, acting in good faith, the company was entitled to apply the policy without tailoring it to the particular circumstances of an employee such as Mr Turner and even where the policy has a discriminatory effect. Accordingly, the application of the policy was found not to be unlawful discrimination because it was authorised under a Victorian law.
2. Inflation draws an analogy between the circumstances discussed in HJ Heinz and here, saying that, as occurred in HJ Heinz, Inflation has adopted and applied blanket policies for the purpose of compliance with licence conditions set under the LCR Act.
3. Three preliminary comments need to be made about the decision in HJ Heinz. First, while Inflation referred to the company having a blanket policy, that is not quite accurate. The policy applied by the company was that employees on restricted duties were not to do overtime 'unless there were circumstances which made it possible to remove them from the source of any aggravation or exacerbation or . . . anything that could bring harm to them.' The decision sets out efforts which were made by the company to determine whether Mr Turner fell within this exception. As explained by Winneke P, the then Anti Discrimination Tribunal erred when it considered whether the policy should apply to Mr Turner in particular rather than whether it applied by virtue of him falling within the category of employees.
4. Secondly, at the time of the case being determined, as a result of common law, the onus of proof in respect of the applicability of the exception fell on Mr Turner, the complainant. As noted earlier, section 13 places the burden of proof on the person seeking to rely on the exception, here Inflation.
5. Thirdly, as noted in the applicants' written submissions, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) was not in force in Victoria at the time the decision was made. Accordingly, a different approach may have been taken had regard been had to relevant provisions of that Act.
6. The applicants' written submissions drew attention to the connection between the health and safety of the employees and overtime work. I agree that is a matter of significance in the decision. In HJ Heinz there was evidence before the Court about the introduction of the policy. There was evidence that the policy had been introduced to manage the risk that an existing injury may be exacerbated or worsened if the worker engaged in work above and beyond the restricted duties they had been found fit to perform. It was noted that, by its nature, overtime work imposes additional physical and psychological strains on employees and so it is not surprising that an employer would, when devising work practices to regulate overtime work, would be concerned with health and safety matters. The risk manager gave evidence that the policy was developed because of obligations under the OHS Act and concerns under the common law of negligence. Other evidence was that the policy had been developed based on the company's experience that workers on restricted duties suffered aggravation of injuries which put their rehabilitation back.
7. The obligations of an employer under OHS legislation include ensuring a safe working environment without risks to health. There is an obvious and close connection between that type of obligation and the arrangements made for an injured worker to return to work to undertake appropriate duties which will not worsen the injury or extend the time away from regular duties. It seems to me that, on the evidence, it was readily apparent that the policy has been designed to meet a legal obligation.

1. Inflation also relies on some remarks about section 75 of the EO Act contained in the decision of Judge Ginnane (as he then was) in Aitken & ors v State of Victoria - Department of Education & Early Childhood Development.[13] The applicants also made written submissions about His Honour's decision.
2. While it was not strictly necessary for His Honour to determine whether the State could rely on section 75 of the EO Act, he made remarks about its interpretation, particularly in the light of section 32 of the Charter and his findings. Section 32 of the Charter requires that, statutes are to be interpreted in a way, so far as is possible, in a way that is compatible with human rights.
3. At paragraph 539, His Honour referred to the purpose of exceptions in legislation like the EO Act. He noted that construing exceptions narrowly may promote the beneficial purpose of the Act. He added, though, that may not always be the case. Inflation relies on the following comments:

The purpose of exceptions in such legislation varies. They may have been included to provide the practical balance between competing public interests. They may, for instance, except conduct from the prohibitions contained in the legislation, in order to protect other important human rights that the equal opportunity, or discrimination legislation does not address or protect. In such circumstances, it would not be appropriate to read the exceptions narrowly rather both the principal enactment and the exception to it, should, in those circumstances, be given their ordinary meanings (citations omitted).

The statutory authority exceptions in the Equal Opportunity Acts serve a different purpose than the exceptions I have discussed in the previous paragraph. They reflect the power of Parliament to legislate so as to authorise conduct that is discriminatory. However, the common law principles of statutory interpretation require a clear expression of intent to interfere with human rights. Section 32(1) of the Charter adds to the strength of that common law principle.

The word "authorise" means to give authority or legal power to; to empower (to do something); to give authority for; formally sanction an act or proceeding.

The Tribunal, and its predecessors, have consistently adopted the interpretation of the statutory authority exception described in Wojcik v Roads Corporation, i.e. that the conduct is excepted if required, or permitted expressly, or by necessary implication by a statute.

The ordinary meaning of the statutory authority exception in the Equal Opportunity Acts extends to conduct permitted by an Act. Section 32(1) of the Charter, which is applicable to conduct after 1 January 2008, does not require that that ordinary meaning be departed from. Conduct expressly permitted by a statute is within the ordinary meaning of the exception. The express permission of conduct must also include within the permission, conduct necessary to enable the permitted conduct to occur (citations omitted - my emphasis).[14]

1. His Honour concluded that certain conduct (the provision of religious instruction in schools and the provision of choice to parents regarding participation) was expressly authorised and permitted by the relevant act. The mechanism by which parents expressed their choice (opt out and opt in) was the means by which the religious instruction was made not compulsory.
2. The effect of this discussion is that, where a human right may be limited by conduct such as the application of the EO Act section 75 exception, it is necessary to consider whether the conduct is required, or permitted expressly or by necessary implication by a statute. Where the conduct is permitted expressly or by necessary implication, that permission may extend to the conduct necessary to enable the permitted conduct to occur.

1. On the material before the Tribunal, Inflation has not established the factual basis for a connection of the kind discussed in HJ Heinz between the legal obligations in the LCR Act and either the notice or security policy. As noted in the applicants' written submissions:

. . . no connection or link has been demonstrated between the amenity of the area (including violent behaviour, drunkenness, vandalism, behaving in a riotous, indecent, offensive or insulting manner, etc.) and culturally specific events. Similarly, the respondents have adduced no evidence to show that 'culturally specific events ie: Indian, Italian, Irish, African etc.' are any more likely to be detrimental to the amenity than an event that is attended by a variety of different cultures, or where the majority of attendees identify as Australian.

1. An increase in foot patrols by police is the police's responsibility. That is not a matter a licensee can control. I understood the evidence of Inspector Falconer to mean that, even where Victoria Police may have concerns about events, the responsibility for decisions remains with the licensee. While the DLU works with licensees, the mere sending of the form is not sufficiently causally linked to the responsibility to protect amenity so that one could conclude that the LCR Act authorises a licensee to discriminate on the basis of race in respect of that form.
2. Where I must take the applicants' case at its highest and proceed on the basis that IDJS denies that there were any negotiations between the parties about IDJS contributing to additional security costs, it is difficult to see how the failure to enter into a particular form of agreement would be authorised by the LCR Act as a basis for racial discrimination. Even if there had been the negotiations described by Inflation, general concerns about security at a promoter event would not be a sufficient basis to conclude that race discrimination was authorised by the LCR Act.
3. The applicants noted that section 86 of the EO Act creates a specific exception related to discriminatory acts necessary for the protection of health, safety and property. That section expressly permits discrimination on the basis of disability or physical features but not race. I accept the submission that weight should be given to the legislature's decision not to include race in that provision.
4. Taking into account section 32 of the Charter, the comments about the nature of the EO Act in Aitken and the absence of any provision in the LCR Act which expressly or by necessary implication, permits racial discrimination in order to comply with a statutory obligation, I am not satisfied that racial discrimination is authorised by sections 17, 91 and 93A of the LCR Act. Noting the absence of a sufficient connection between the policies relied on by Inflation and those sections of the LCR Act, it is not open to conclude that racial discrimination was authorised in order to enable Inflation to take steps to comply with the LCR Act.

1. I will make an order dismissing Inflation's application for summary dismissal or strike out as it has not established that section 75 of the EO Act provides a complete defence to the applicants' claim.
2. The further hearing of the application shall proceed before me commencing on 25 November 2014.
3. In their written submissions, the applicants said this:

At the preliminary hearing it was stated that the Tribunal would consider the issue on the basis that the Respondent had not made out certain parts of their defence, in particular that set out in paragraph 19A of the respondent's Amended Points of Defence. After hearing the evidence, the Tribunal indicated that it was not satisfied that a member of the police force had approached Inflation nightclub on 24 September 2011 and informed the manager, Patrick Dromi, that the Africafest night was a cultural night, that police had not received the External Promoters Form, that IDJS had recently caused a riot at a nearby club, and advised the respondent to cancel Africafest.

1. I again emphasise that I have made no final findings of fact on these matters. I could not have done so as I did not hear evidence from all of the persons who were party to the relevant conversations. The matters mentioned in the applicants' written submissions will be open for consideration at the substantive hearing as will other matters relevant to the establishment of the claim of discrimination.

[1] As at September 2011, the business name IDJS Entertainment was owned by Mr Obudho. On 20 April 2012, a company with the same name was created and it thereafter owned the business name. For the purposes of this proceeding, at all relevant times, Mr Obudho was legally responsible for IDJS Entertainment.

[2] See section 6 of the EO Act which sets out the attributes protected by the Act.

[3] Dated 29 September 2014, paragraph 19H.

[4] Paragraph 5 of the Applicants' written submissions dated 31 October 2014.

[6] [2011] VSC 330 at paragraph 58.

[8] Ms Tsamis clarified that some of these techniques, such as identity scans were not available in 2011

[9] VCE, introductory pages, page headed 'Background'.

[10] [1991] HCA 49.

[11] [1998] 4 VR 872.

[12] Section 21 of the Equal Opportunity Act 1984 (Vic).

[13] [2012] VCAT 1547.